ARE STATE-SUPPORTED HISTORICALLY BLACK
COLLEGES AND UNIVERSITIES JUSTIFIABLE AFTER
J OHN A. MOORE *
I. I NTRODUCTION ...................................................................................................... 547
II. THE ORIGIN OF HISTORICALLY BLACK COLLEGES AND UNIVERSITIES ......................... 549
A. The Origin of Private HBCUs........................................................................... 549
B. The Origin of Public HBCUs ............................................................................ 549
III. BROWN AND I TS P ROGENY ....................................................................................... 550
A. The Brown Standard........................................................................................ 550
B. The Green Standard......................................................................................... 551
C. The Bazemore Standard ................................................................................... 552
D. The Fordice Standard ....................................................................................... 553
IV. POSSIBLE INTERPRETATIONS OF THEFORDICE STANDARD .......................................... 555
A. Interpretations in Favor of Maintaining Public HBCUs....................................... 555
B. Interpretations Against Maintaining Public HBCUs............................................ 556
V. BAZEMORE : T HE BETTER STANDARD ........................................................................ 558
VI. CIRCUMVENTING THE NEGATIVE I NTERPRETATIONS.................................................. 560
A. Diversification ................................................................................................ 561
B. The Tier System ............................................................................................... 562
VII. CONCLUSION ......................................................................................................... 563
The colleges founded for Negroes are both a source of pride to blacks who
have attended them and a source of hope to black families who want the
benefits of higher learning for their children. They have exercised leadership
in developing educational opportunities for young blacks at all levels of in-
struction, and, especially in the South, they are still regarded as key institu-
tions for enhancing the general quality of the lives of black Americans.1
As the above statement suggests, Historically Black Colleges and Universi-
ties (HBCUs) continue to play a significant role in the development and educa-
tion of African Americans. Eliminating these institutions will likely increase the
educational disparity between African and Anglo-Americans since HBCUs
maintain higher graduation rates for their black students than do predominately
white colleges and universities.2 Despite the above observation, the continued
* J.D. Candidate, May 2000, the Florida State University College of Law. The Author is an
alumnus of a public Historically Black University, Florida A&M University (FAMU). The Author
wishes to express that many public Historically Black Colleges and Universities (HBCUs), like FAMU,
are still needed to provide an education to African-American students. America’s capitalistic structure is
not yet diversified enough to elim inate public HBCUs, which are one of the greatest sources of African-
American scholars, educators, and business people. The Author hopes to see public HBCUs flourish. The
Author also wishes to express his appreciation to Professor Steven Gey of the Florida State University
College of Law for his thoughtful comments and suggestions.
1. CARNEGIE COMMISSION ON HIGHER EDUCATION , FROM I SOLATION TO MAINSTREAM:
P ROBLEMS OF THE COLLEGES FOUNDED FOR NEGROES 11 (1971).
2. See SERBRENIA J. SIMS, DIVERSIFYING HISTORICALLY BLACK COLLEGES AND UNIVERSITIES–
A NEW HIGHER EDUCATION PARADIGM 10 (1994). “The Carnegie Commission . . . predicted that the
total number of black students enrolled in all types of higher education institutions would have to i -n
548 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
existence of state-supported HBCUs poses a serious social and legal dilemma.
Supporters of desegregation have fought hard to establish legal rules that forbid
denying an individual access to higher education because of his or her race.
However, these same supporters want to preserve and enhance HBCUs, recog-
nizing the vital role that these institutions play. The dilemma, then, centers on
preserving state-supported HBCUs while at the same time demanding full inte-
gration of traditionally white institutions.
In 1992 the United States Supreme Court further complicated the dilemma
in United States v. Fordice.3 In Fordice, the Court addressed the issue of
“whether states that maintained racially segregated systems of higher education
are obligated to take steps beyond adopting race-neutral admissions policies to
desegregate their educational institutions.”4 The Court answered this question in
the affirmative and decided that race-neutral policies alone are not enough to
rectify remnants of prior de jure segregation.5 Instead, the Court adopted a stan-
dard requiring states to eliminate all policies that continue to have a discrimi-
natory effect and that are traceable to the prior de jure system.6 The Court,
however, left unanswered the question of whether public HBCUs are constitu-
tionally justifiable under this new standard. Instead, the Court complicated
matters by leaving in place a standard that, on its face, suggests that public
HBCUs are no longer constitutional.
This Note criticizes the applicability of the educational standard set forth in
Fordice. Particularly, this Note discusses the legal ramifications of the Fordice
standard as it relates to HBCUs. First, Part II will describe the history and origin
of HBCUs and, specifically addresses, how and why they were established. Part
III examines the case law governing the desegregation of public schools, n- i
cluding the rationale and policy reasons underlying the law. Specifically, Part
III reviews the educational standards set forth in Brown v. Board of Education7
and its progeny.
In light of this historical background, Part IV examines two possible inter-
pretations of the Fordice standard as it relates to the survival of HBCUs and ad-
dresses many of the concerns that Justice Scalia noted in his Fordice dissent.
Additionally, Part IV discusses the potential effects that these interpretations
may have on HBCUs, especially HBCUs located in close proximity to tradi-
tionally white institutions.
Part V analyzes the two opposing standards set forth in Bazemore v. Friday8
and Fordice, focusing on why the appropriate standard to govern HBCUs
should be the Bazemore standard. Part V addresses the advantages and disad-
vantages of maintaining HBCUs and ultimately illustrates how HBCUs can
crease to about two million by the twenty-first century in order to reach educational parity with white
students.” Id. (citing CARNEGIE COMMISSION ONHIGHER EDUCATION , supra note 1, at 11).
3. 505 U.S. 717 (1992).
4. Leland Ware, The Most Visible Vestige: Black Colleges After Fordice, 35 B.C. L. R . 633,
633 (1994) (citing Fordice, 505 U.S. at 729).
5. See Fordice, 505 U.S. at 729. De jure means “Of Right.” BLACK’ S LAW DICTIONARY 425 (6th
ed. 1990). In the context of this Note, the phrase refers to the period when racial segregation was law-
fully permitted in public schools.
6. See Fordice, 505 U.S. at 729.
7. 347 U.S. 483 (1954).
8. 478 U.S. 385 (1986).
2000] FORDICE—A HIGHER EDUCATION DILEMMA 549
survive the negative interpretation of the Fordice standard and continue to play
a vital role in American soc iety.
II. T HE ORIGIN OF HISTORICALLY BLACK
COLLEGES AND UNIVERSITIES
A. The Origin of Private HBCUs
What exactly is a Historically Black College or University? Section 322 of
Title III of the Black College and University Act proffers the following defin i-
[A]ny historically Black college or university that was established prior to
1964, whose principal mission was, and is, the education of Black Ameri-
cans, and that is accredited by a nationally recognized accrediting agency or
association determined by the Secretary (of Education) to be a reliable
authority as to the quality of training offered according to such an agency or
association, making reasonable progress toward accreditation.9
The origin of HBCUs can be divided into two categories: the establishment
of private HBCUs and the establishment of public HBCUs. Most private
HBCUs originated during the post-Civil War era when Christian missionaries
undertook efforts to provide freed slaves with a basic education.10 During this
period, “a number of the nation’s most prestigious black institutions of higher
learning were founded, including Virginia Union and Shaw Universities (1865),
Fisk University and Lincoln Institution (1866), Talladega College and Howard
University (1867), . . . and Cheyney State Teachers College (1873).”11
B. The Origin of Public HBCUs
The inception of public institutions of higher education in general began in
1862 when Congress passed the First Morrill Act.12 This Act provided each
state with a federal land grant to promulgate the creation of liberal and practical
education for the industrial classes.13 Many blacks, however, could not take ad-
vantage of the public education because the First Morrill Act did not obligate
states to create land-grant colleges for blacks and because many states forbade
blacks from attending the white public institutions.14 The obligation to publicly
educate blacks did not occur until Congress passed the Second Morrill Act in
9. SIMS, supra note 2, at 5-6 (quoting Section 322 of Title III of the Black College and University
10. See JACQUELINE FLEMING , BLACKS IN COLLEGE 4 (1984).
11. SIMS, supra note 2, at 6.
12. First Morrill Act, ch. 130, § 1, 12 Stat. 503, 503 (1862) (codified as amended at 7 U.S.C. § 301
(1994 & Supp. IV 1998)).
13. See id.
14. See Paul E. Barton, Students at Historically Black Colleges and Universities (last modified
Mar. 6, 1999) <http://etsis1.ets.org/research/pic/hbctoc.html>.
15. Second Morrill Act, ch. 841, § 1, 26 Stat. 417, 418 (1890) (codified as amended at 7 U.S.C. §
321 (1994 & Supp. IV 1998)).
550 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
Under the Second Morrill Act, states were required either to provide sepa-
rate educational facilities for black students or to admit them to existing white
facilities.16 In response to this Act, coupled with the Supreme Court’s “separate
but equal” doctrine enunciated in Plessy v. Ferguson,17 the southern states chose
to establish “separate but equal” public institutions for blacks.18 These black in-
stitutions, however, were not equal to their white counterparts.19 Instead, the
black institutions received less funding, which resulted in inferior facilities and
educational services.20 Nevertheless, despite the inequalities that existed and
still exist within public HBCUs, many of these institutions have survived and
enjoy long-standing reputations for educating and graduating successful African
Americans. Whether these institutions will continue to survive is a lingering
question that HBCUs have faced since the Supreme Court’s desegregation d e-
cree in Brown v. Board of Education.21
III. B ROWN AND ITS PROGENY
A. The Brown Standard
Until 1954, the Plessy v. Ferguson “separate but equal” doctrine solidified
the existence of HBCUs. African Americans and Anglo-Americans were edu-
cated separately in their respective institutions. In 1954, however, the Supreme
Court revisited the “separate but equal” doctrine in the landmark decision,
Brown v. Board of Education. In an effort to ensure equal protection under the
law for blacks and eradicate discrimination, the Brown Court held that state-
mandated segregation of public educational facilities was inherently unconsti-
tutional under the Equal Protection Clause of the Fourteenth Amendment.22
Theoretically, after this decision, all state public school systems were to be
desegregated; however, Brown was ambiguous in that it did not address any
solutions to remedy such segregation. Therefore, a majority of the southern
states ignored Brown and continued to operate segregated public school sys-
tems.23 In response, the Supreme Court issued Brown II,24 demanding the deseg-
regation of all public schools with “all deliberate speed.”25 The Court, however,
still failed to address the ambiguity of the previous Brown decision, and south-
ern states found ways to continue to resist desegregation.26
After Brown, the only clear standard was that state-mandated segregation
was unconstitutional. It remained unclear whether Brown applied only to ele-
16. See id. § 323.
17. 163 U.S. 537 (1896).
18. At least one black public institution of higher learning was established in each of the southern
states. See Ware, supra note 4, at 636.
19. See id.
20. See id. at 637.
21. 347 U.S. 483 (1954).
22. See id. at 495.
23. See Ware, supra note 4, at 646.
24. 349 U.S. 294 (1955).
25. Id. at 301.
26. See Robert McKay, “With All Deliberate Speed,” A Study of School Desegregation, 31 N.Y.U.
L. REV. 991 (1956).
2000] FORDICE—A HIGHER EDUCATION DILEMMA 551
mentary and secondary schools, or if it also applied to postsecondary schools.
Moreover, both Brown and its sequel left still another question: How would the
Brown standard affect people’s “freedom to choose” which school to attend?
The answer to this question directly impacts the future existence of public
HBCUs. If Brown, or its progeny, mandates desegregation regardless of choice,
then the continued existence of public HBCUs would certainly be unconstitu-
B. The Green Standard
The Supreme Court finally addressed the “freedom of choice” issue in its
1968 decision in Green v. County School Board of New Kent County. 27 The is-
sue in Green was whether adopting a “freedom of choice” plan, which allowed
students to attend the public school of their choice, complied with the standard
set forth in Brown.28 According to the facts in Green, the New Kent County
School Board operated a discriminatory, segregated school system for eleven
years after Brown was initially decided.29 White students went to one school,
black students went to another, and, due to the school board’s attempt to main-
tain a segregated system, many students were not allowed to attend the schools
closest to them.30 In order to receive federal funding, the school board adopted a
“freedom of choice” plan to show that it was complying with the desegregation
order mandated by Brown.31
The Court, however, found that the New Kent County School Board’s a t-
tempt to implement such a plan did not satisfy the intended standard set forth in
Brown. 32 Particularly, the Court held that “localities that had maintained de jure
systems of segregation could not satisfy their constitutional obligations merely
by adopting [race neutral] ‘freedom of choice’ policies.”33 Furthermore, the
Court set forth a standard compelling states that operated a dual system to take
affirmative steps to convert their dual system to a unitary one in “which racial
discrimination would be eliminated root and branch.”34 The Court, however, did
not hold that “freedom of choice” plans were, themselves, unconstitutional. 35
Arguably, Green only applies to elementary and secondary schools.36 Thus,
Green did absolutely nothing to clarify Brown regarding the issue of whether
Brown affects the viability of public HBCUs. Furthermore, none of the S u-
27. 391 U.S. 430 (1968).
28. See id. at 432.
29. See id. at 433. The New Kent County School Board “continued the segregated operation of [its
public schools] after the Brown decisions, presumably on the authority of several statutes enacted by
Virginia in resistance to [the Brown] decisions. . . . One statute, the Pupil Placement Act [was] not re-
pealed until 1966.” Id. at 432-33.
30. See id. at 432.
31. See id. at 433-34.
32. See id. at 437.
33. Ware, supra note 4, at 646-47 (citing Green, 391 U.S. at 440).
34. Green, 391 U.S. at 437-38; see also Cooper v. Aaron, 358 U.S. 1, 7 (1958) (implementing
35. See Green, 391 U.S. at 439.
36. Brown dealt solely with state-imposed segregation practices in elementary and secondary
schools where attendance is mandatory and students have no freedom to attend a school of their choice.
Thus, arguably, this standard does not apply to postsecondary institutions where students have the ult i-
mate choice as to which institution they want to attend.
552 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
preme Court’s decisions pertaining to desegregation in higher education post-
Green help clarify the effects of Brown on public HBCUs. 37 Subsequent cases
have only required states “to achieve a system of determining admission to . . .
public schools” using a non-discriminatory, non-segregated basis.38
C. The Bazemore Standard
Not until 1986, in Bazemore v. Friday,39 did the Court clarify Green’s “free-
dom of choice” standard. In Bazemore, the Court addressed the issue of whether
voluntarily segregated, state-supported organizations comply with Brown’s de-
segregation regime absent evidence that the segregation is based on discrimina-
tion.40 The organizations involved in Bazemore were a 4-H Club and the North
Carolina Agricultural Extension Service, a division of the North Carolina State
According to the facts in Bazemore, prior to the Civil Rights Act of 1964,42
the Extension Service was divided into two segregated branches, a white branch
and a “Negro branch.”43 After Congress enacted the Civil Rights Act, the two
branches unified into a single branch; however, some of the disparities that ex-
isted prior to the Act were not eliminated.44 The black employees, therefore,
brought an action against the Service under Title VII of the Civil Rights Act al-
leging racial discrimination. 45
The Bazemore Court held that “[t]he mere continued existence of single-race
clubs does not make out a constitutional violation.”46 The Court went on to hold
that a segregated, state-supported organization will pass constitutional muster if
the “racial imbalance . . . was the result of [the] wholly voluntary and unfettered
choice of private individuals.”47 In coming to this conclusion, the Court noted
that evidence of discrimination is the key to determining unconstitutional segre-
gation. 48 Thus, if a state-supported organization of voluntary association is seg-
regated by choice, absent discrimination against any particular group, then that
organization will satisfy the Brown standard. The Court further declined to ap-
37. The Supreme Court cases following Brown required states to eliminate all vestiges of dis-
criminatory segregation. See, e.g., Goss v. Board of Educ., 373 U.S. 683, 687 (1963); Cooper v. Aaron,
358 U.S. 1, 7 (1958).
38. Brown v. Board of Educ., 349 U.S. 294, 300-01 (1955).
39. 478 U.S. 385 (1986).
40. See id. at 407.
41. See id. at 389.
42. Civil Rights Act of 1964, 42 U.S.C. § 2000 (1999).
43. See Bazemore, 478 U.S. at 390.
44. See id. at 391. After the unification of the two branches, salary and promotion disparities con-
tinued to exist between the Extension Service’s white and black personnel. See id. The black employees
alleged that the Service “failed to recruit, hire, and assign blacks on an equal basis with whites; had de-
nied blacks the same compensation, terms, conditions, and privileges as were provided to whites; had
segregated blacks in work assignments; [and] had failed to establish selection standards sufficiently ob-
jective to prevent discrimination in hiring and promotion; . . .” Id. at 393 n.3.
45. See id. at 391. Particularly, the black employees alleged that the Service violated the First,
Fifth, and Fourteenth Amendments to the Constitution. See id.
46. Id. at 408.
47. Id. at 407 (affirming the district court’s finding that the Extension Service did not violate the
Constitution because the “Service has had a policy that all voluntary clubs be organized without regard to
race and that each club certify that its membership is open to all persons regardless of race”).
48. See id.
2000] FORDICE—A HIGHER EDUCATION DILEMMA 553
ply the Green duty-to-integrate standard.49 Instead, the Court limited the Green
standard to public elementary and secondary schools where children have no
choice but to attend state-designated schools.50
While logic would indicate that the Bazemore standard would appropriately
address public HBCUs ,—segregated by choice—the Supreme Court instead
created a new standard and further confused the issue of constitutionality of
D. The Fordice Standard
Instead of adopting what seemed to be a relevant standard in Bazemore, the
Supreme Court, in 1992, opted to create a new standard to determine the con-
stitutionality of public HBCUs. United States v. Fordice51 involved the question
of whether a state can satisfy its duty to dismantle its prior dual-university sys-
tem, set forth in Brown, by adopting and implementing race-neutral policies.52
According to the facts of Fordice, Mississippi operated eight separate pub-
lic, postsecondary institutions.53 Four of the institutions, Mississippi State Un i-
versity, Mississippi University for Women, University of Southern Mississippi,
and Delta State University, were established post-Civil War, exclusively to edu-
cate Mississippi’s Anglo-American citizens.54 The other three institutions, A l-
corn State University, Jackson State University, and Mississippi Valley State
University, were established during the same period exclusively to educate the
state’s African-American citizens.55 More than thirty years after the Supreme
Court ordered all states to desegregate their schools via the Brown decision, the
Mississippi university system remained significantly segregated.56 There was no
state requirement that the schools be segregated, so the schools arguably r e-
mained segregated by choice.57
Under Bazemore’s “freedom of choice,” race-neutral standard, Mississippi’s
university system may have passed constitutional muster. However, the S u-
preme Court adopted a new standard, somewhat reminiscent of the Green stan-
dard, and held that race-neutral policies alone do not satisfy a state’s affirmative
duty to dismantle formerly segregated systems.58 Moreover, the Court noted that
if a state university system has policies in force that can be traced to a dual, de
jure system, and those policies have a discriminatory effect, they must be “re-
49. See id. at 408.
50. See id.
51. 505 U.S. 717 (1992). In Fordice, the Court refused to adopt Bazemore’s “freedom of choice”
standard to govern public HBCUs. Instead, the Court created a standard where “freedom of choice”
alone is no longer sufficient to justify the continued maintenance of public HBCUs. See id. at 729.
52. See id. at 727-28.
53. See id. at 721-22.
54. See id. at 721.
55. See id. at 721-22.
56. See id. at 724-25. At the time of this suit, the predominately white universities averaged be-
tween 80-91% white students while 71% of the state’s black students went to the predominately black
universities, where the make-up of the population was from 92-99% black. See id. at 725.
57. Mississippi argued that it had fulfilled the obligation to dismantle the segregated system by
imposing race-neutral policies with regards to admissions, hiring, and general operations. See id.
58. See id. at 729.
554 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
formed to the extent practicable and consistent with sound educational prac-
tices.”59 The Court stated:
If the State perpetuates policies and practices traceable to its prior system
that continue to have segregative effects—whether by influencing student en-
rollment decisions or by fostering segregation in other facets of the univer-
sity system—and such policies are without sound educational justification
and can be practicably eliminated, the State has not satisfied its burden of
proving that it has dismantled its prior system. 60
The Fordice Court found that the Mississippi university system had “several
surviving aspects” of a prior discriminatory segregated system.61 First, Missis-
sippi’s university system had discriminatory policies that restricted admission
“in a way that perpetuate[d] segregation.”62 Second, the programs at the respec-
tive white and black institutions were “unnecessarily duplicated” in a way that
fostered the unconstitutional “separate but equal” standard outlawed in Brown.63
Third, Mississippi’s institutional mission classification limited the program
scope of the black universities.64 Finally, maintaining eight educational institu-
tions made Mississippi’s university system appear to perpetuate segregation.65
Thus, Mississippi’s system did not withstand constitutional scrutiny.66
Another very important aspect of the Fordice decision is the dicta regarding
Mississippi’s black institutions. The Court implied that by maintaining a r a-
cially identifiable university, a state walks a narrow line that borders on uncon-
stitutionality.67 Also, the Court noted that closing or merging one or more insti-
tutions would remedy the discriminatory effects of the existing system.68 The
ambiguous standard set forth in the Court’s holding, coupled with various pos-
sible interpretations of the Court’s dicta, suggest that public HBCUs are uncon-
stitutional and should be merged or closed to comply with the desegregation or-
der mandated in Brown.
60. Id. at 731.
61. Id. at 732-33.
62. Id. at 734. I will refer to this aspect as Fordice’s “admission standard.” According to Missis-
sippi’s university admission policy, the predominately white institutions had a higher ACT admissions
requirement than the predominately black institutions. Students scoring less than 15 on the ACT were
excluded from attending the predominately white institutions and instead were only qualified to attend
the black institutions. Moreover, in 1985, 72% of Mississippi’s white high school seniors achieved high
enough ACT scores to attend the white universities while less than 30% of the black students achieved
such a score. Thus, a disproportionate number of black students were forced to attend predominately
black postsecondary institutions. See id.
63. See id. at 738 (indicating that “34.6[%] of the 29 undergraduate programs at [Mississippi’s]
historically black institutions are ‘unnecessarily duplicated’ by the historically white universities, and . . .
90[%] of the graduate programs at the historically black institutions are unnecessarily duplicated”).
64. See id. at 741. I will refer to this aspect as Fordice’s “mission standard.” The Court found that
“[Mississippi’s] institutional mission designations . . . have as their antecedents . . . policies enacted to
perpetuate racial separation . . . .” Id. at 740.
65. See id. at 742.
66. See id. at 732-33.
67. See id. at 743.
68. See id. at 742.
2000] FORDICE—A HIGHER EDUCATION DILEMMA 555
IV. POSSIBLE INTERPRETATIONS OF THE F ORDICE STANDARD
A. Interpretations in Favor of Maintaining Public HBCUs
What does the Fordice standard really mean? To date, only two jurisdictions
have had the opportunity to interpret the ambiguous Fordice standard as it re-
lates to the future role of HBCUs, and neither one directly addressed the issue.69
However, other interpretations have proven that there is a clear dichotomy in
the way that the standard applies to these institutions. One interpretation favors
the continued existence of public HBCUs, and the other interpretation indicates
that the Fordice standard would require eliminating HBCUs.
One of the interpretations favoring maintaining public HBCUs is proffered
by the United States Department of Education.70 In 1994 the Department of
Education (DOE) issued a Notice of Application of Supreme Court Decision,
which announced its interpretation of Fordice as it relates to the continued ex-
istence of public HBCUs.71 The DOE interpreted Fordice in a manner consis-
tent with existing DOE regulations, requiring courts to use a broad range of
factors to determine whether a state’s policies perpetuate segregation.72 Under
the guise of the Fordice standard, the Department confirmed its commitment to
preserve public HBCUs. The notice provides that:
States may not place unfair burdens upon black students and faculty in the
desegregation process. Moreover, the Department’s “Revised Criteria” rec-
ognize that State systems of higher education may be required, in order to
overcome the effects of past discrimination, to strengthen and enhance tradi-
tionally or historically black institutions. The Department will strictly scruti-
nize State proposals to close or merge traditionally or historically black in-
stitutions, and any other actions that might impose undue burdens on black
students, faculty, or administrators or diminish the unique roles of those in-
Although the DOE’s interpretation of Fordice has a profound impact on the fu-
ture existence of public HBCUs, its interpretation may hold little weight if
HBCUs are deemed unconstitutional by the judiciary. Thus, to ensure the con-
tinued existence of public HBCUs, there needs to be a judicial interpretation
corresponding with the federal agency’s interpretation; otherwise, opposing in-
terpretations will call into question the stability of the HBCU.
69. See United States v. Louisiana, 9 F.3d 1159, 1164 (5th. Cir. 1993) (addressing the issue of the
constitutionality of maintaining a dual, de jure public university system). Although Louisiana interpreted
Fordice not to require the closing of its public HBCU, it was done so in dicta. The issue in the case was
not whether public HBCUs are constitutional but, instead, whether its four-board system governing the
institutions was unconstitutional. See id. at 1165; see also Knight v. Alabama, 14 F.3d 1534, 1540 (11th.
Cir. 1994) (addressing the issues of maintaining dual missions, land grant funding, and curriculum). Like
Louisiana, Knight failed to address the constitutionality of HBCUs under the Fordice standard. See id.
70. The United States Department of Education is a federal agency primarily responsible for en-
forcing Title VI of the Civil Rights Act of 1964. Thus, the agency’s interpretation has a profound impact
on the continued existence of public HBCUs.
71. See Notice of Application of Supreme Court Decision, 59 Fed. Reg. 4271 (Dep’t Educ. 1994).
72. See id. at 4272.
556 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
Another interpretation favoring HBCUs is Justice Thomas’ concurrence in
Fordice. 74 According to Justice Thomas, the majority’s standard did not go so
far as to compel the elimination of public HBCUs.75 Instead, Justice Thomas
interpreted the Court’s standard as allowing the maintenance of public HBCUs
if they are consistent with “sound educational practices,”76 and they are educ a-
tionally justifiable. 77 Justice Thomas argued that HBCUs are educationally justi-
fiable and, thus, constitutionally acceptable because these institutions have
“distinctive histories and traditions”78 and because they are “a symbol of the
highest attainments of black culture.”79 Justice Thomas further recognized that
while a state could not “maintain such traditions by closing particular institu-
tions,” states are not necessarily foreclosed from “operat[ing] a diverse assort-
ment of institutions—including historically black institutions—open to all on a
race-neutral basis . . . .”80
Justice Thomas’ argument, however, fails to recognize that others may u n-
derstand and apply the Fordice standard in a different manner. Justice Thomas
notes that no one would likely argue that HBCUs lack “‘sound educational jus-
tification.’”81 Nevertheless, as discussed below, there are prominent legal argu-
ments against the educational justification for public HBCUs.
B. Interpretations Against Maintaining Public HBCUs
Judge Constance Baker Motley presented a compelling interpretation of the
Fordice standard that would require eliminating public HBCUs.82 Like Justice
Thomas’ concurrence, Judge Motley’s interpretation of the standard focuses on
the Supreme Court’s statement, “consistent with sound educational practices.”83
Also, Judge Motley agrees that the proper interpretation of Fordice requires that
HBCUs be educationally justifiable to pass constitutional muster.84 Judge Mot-
ley departs from Justice Thomas’ view, however, in that she interprets Fordice
to indicate that public HBCUs are no longer educationally justifiable and, there-
fore, should be merged with traditionally white institutions or closed alto-
74. See United States v. Fordice, 505 U.S. 717, 745 (1992) (Thomas, J., concurring). Justice Tho-
mas states in his concurrence that he does not understand the majority opinion in Fordice to forbid a state
from maintaining public HBCUs. See id. at 749 (“It would be ironic . . . if the institutions that sustained
blacks during segregation were themselves destroyed in an effort to combat its vestiges.”).
75. See id. at 749.
76. Id. at 747 (quoting the majority, with emphasis).
77. See id.
78. Id. at 748.
79. Id. (quoting J. P REER, LAWYERS V. EDUCATORS: BLACK COLLEGES AND DESEGREGATION IN
PUBLIC HIGHER EDUCATION 2 (1982)).
80. Id. at 748-49.
82. See JUDGE CONSTANCE B. M OTLEY, EQUAL JUSTICE UNDER THE LAW : AN AUTOBIOGRAPHY
83. Id. at 191, 238.
84. See id. Judge Motley acknowledges that “[a]fter Fordice, . . . Southern states may not act on
the . . . desire . . . to . . . preserve black colleges that were set up under Jim Crow; unless such continua-
tion is ‘educationally justifiable.’” Id. at 238.
85. See id. at 238-39.
2000] FORDICE—A HIGHER EDUCATION DILEMMA 557
In contrast to Justice Thomas, Judge Motley’s position declines to recognize
the distinctive histories and traditions of public HBCUs as an educational justi-
fication. Instead, she argued that complete diversification is the proper standard
and that “[s]tate segregated black colleges bear the same stigma as the Jim
Crow railroad car or the back of the bus [and] that era [,she believes,] is gone
with the wind.”86 Furthermore, Judge Motley argues that in conjunction with the
Fordice standard it would be “utterly confusing” to allow public HBCUs to re-
main open for educationally sound reasons.87 Instead, Judge Motley argues that
a better interpretation of Brown and its progeny would require integrating all
black public colleges, to ensure white attendance, and thus promote desegrega-
Based on Judge Motley’s argument and interpretation of Fordice, public
HBCUs do not fit within the Court’s constitutional framework. This interpreta-
tion, however, directly opposes the DOE’s interpretation and the desires of
many public HBCU supporters. Did the Supreme Court really intend to dis-
mantle public HBCUs as Judge Motley’s interpretation suggests? This lingering
question, based on the ambiguity of the Fordice standard, is what Justice Scalia
feared in his Fordice dissent.
Justice Scalia’s interpretation of the Fordice majority opinion convincingly
illustrates the inherent ambiguity in the Fordice standard. According to Justice
Scalia, the Fordice standard’s ambiguity poses a dilemma to future judicial i - n
terpretations.89 Justice Scalia’s interpretation of the standard requires states to
prove that HBCUs are not the consequence of prior de jure regimes or, if they
are, they must be educationally justifiable. 90 This standard, according to Justice
Scalia, would be impossible to overcome since all HBCUs were established
during an era when dual systems were the norm.91
Moreover, under Justice Scalia’s interpretation of the majority’s standard,
the only way that a state could disprove that it perpetuates existing racial identi-
fiability within its university system would be to eliminate segregation by e n-
suring racial proportionality. 92 In addition, Justice Scalia did not envision how,
under the Fordice majority’s standard, any public HBCU could be education-
ally justifiable. 93 According to Justice Scalia, the only educational value a pub-
lic HBCU could offer would be to foster “schools in which blacks receive their
education in a ‘majority’ setting; but to acknowledge that as a ‘value’ would
contradict the compulsory-integration philosophy that underlies [Brown and its
progeny].”94 Thus, the Court’s standard, according to Justice Scalia, will ulti-
mately eliminate public HBCUs, a result that ironically opposes the very reason
Fordice was brought in the first place.95
86. Id. at 239.
87. Id. at 240.
88. See id.
89. See United States v. Fordice, 505 U.S. 717, 753 (1992) (Scalia, J., dissenting).
90. See id.
91. See id.
92. See id.
93. See id. at 759.
94. Id. at 759-60.
95. See id. at 760.
558 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
Justice Scalia argued that the elimination of public HBCUs is not mandated
by the Constitution, and that elimination would do a disservice to those students
who choose to attend such institutions.96 Justice Scalia argued that Supreme
Court precedent does not compel eliminating such institutions and that, ideally,
the Bazemore standard should determine the constitutionality of HBCUs.97
Based on public policy and the rationale behind Brown and its progeny, I
agree. The Fordice majority opinion exposed the viability of public HBCUs to
detrimental interpretations. To eliminate all ambiguity regarding this issue and
to avoid any further confusion, the Supreme Court should adopt the Bazemore
freedom of choice standard as the standard to govern public HBCUs.
V. B AZEMORE : THE BETTER STANDARD
The better standard to govern the existence of public HBCUs is the
Bazemore “freedom of choice” standard. Unlike the ambiguous Fordice stan-
dard, the Bazemore standard clearly provides the best solution regarding the
existence of public HBCUs. Moreover, the Bazemore standard is consistent
with Brown and its progeny.
The Fordice standard inappropriately distinguished the Green standard from
the Bazemore standard. As applied, the two standards, in fact, constitute a sin-
gle, unitary standard. They are the same standard as set forth in Brown and its
progeny, which prohibits states from engaging in discriminatory segregation.
The only distinguishing factor between Bazemore and Green is that in Green,
“freedom of choice” was not really “freedom of choice” because the elementary
and secondary school students in Green did not have a choice but to attend
school. In postsecondary education, however, students have the choice to attend
school. Moreover, the Green Court did not hold the “freedom of choice” stan-
dard itself unconstitutional. 98 The Court held that states could not satisfy their
constitutional obligation to eliminate discriminatory segregation by simply
adopting “freedom of choice” policies.99 Thus, even under Green, “freedom of
choice” policies should satisfy constitutional scrutiny if such policies do not
perpetuate racial discrimination.
The problem, however, as it applies to public HBCUs, is that these institu-
tions were founded for the purpose of promoting discriminatory segregation.100
Therefore, one could argue that “freedom of choice” policies could never justify
maintaining public HBCUs because the existence of these institutions will a l-
ways perpetuate racial discrimination. This argument, however, misconstrues
the true meaning of discrimination. In my opinion, discrimination, in the con-
text of this Note, occurs when an individual does not have the “true” opportu-
nity to choose which particular institution he/she wants to attend. As Justice
Thomas correctly notes, African Americans are attracted by distinctive history
96. See id. According to Justice Scalia, “to deny [the student] the right to attend the institution of
his choice, he is done a severe disservice by remedies which, in seeking to maximize integration, min i-
mize diversity and vitiate his choices.” Id. (quoting Ayers v. Allain, 914 F.2d 676, 687 (5th Cir. 1990)).
97. See Fordice, 505 U.S. at 761-62.
98. Green v. County School Bd. of Kent County, 391 U.S. 430, 439 (1968).
99. See id. at 440.
100. See Barton, supra note 14.
2000] FORDICE—A HIGHER EDUCATION DILEMMA 559
and tradition associated with HBCUs that transcends the discriminatory origins
of many HBCUs. The only standard that accurately addresses this opportunity is
the Bazemore standard.
Accordingly, the Bazemore standard is the better standard for three reasons.
First, the Bazemore standard provides the same solution to the problem pre-
sented in Fordice. The Supreme Court did not have to create a new standard.
Second, the Bazemore standard best comports with the rationale underlying
Brown and its progeny. Finally, and perhaps most important, eliminating public
HBCUs would be counter-productive and detrimental to those who stand to
benefit from the many positive aspects offered by HBCUs. Thus, courts should
not adhere to the vague Fordice standard since this standard could potentially
eliminate such institutions.
First, the Supreme Court did not have to create a new standard to satisfy the
de jure segregation problems at issue in Fordice. As previously noted, the
problem with Mississippi’s university system, in Fordice, was that the system
continued to maintain policies and practices that utilized ACT test scores to re-
strict African Americans’ choices regarding which universities to attend.101
Therefore, the state’s policies discriminated against African Americans. To ad-
dress this concern, the Supreme Court could have used the Bazemore standard
and reached the same conclusion without conflating the issue regarding the con-
stitutionality of public HBCUs.
The primary component underlying the Bazemore standard was evidence of
discrimination as determinative of unconstitutional segregation. Thus, if a state-
supported organization is segregated by choice but does not discriminate against
any particular group, then it will satisfy the Court’s Brown standard. In the al-
ternative, if the state has discriminatory policies perpetuating segregation, then
those policies would not satisfy Brown and, therefore, would be unconstitu-
tional. Accordingly, since, in Fordice, the Mississippi university system’s poli-
cies and practices discriminated against African Americans in a way that per-
petuated segregation, under the more appropriate Bazemore standard, those
policies would be unconstitutional. This is precisely the same result as was
achieved under the Fordice standard.102
Second, Brown and its progeny stood for the same proposition mentioned
above: that discriminatory segregation is unconstitutional. Moreover, Brown
comports with adopting the Bazemore standard over the Fordice standard. The
Brown Court intended to provide an end to discriminatory segregation, thus
providing African Americans with the opportunity to attend their choice of
schools. Moreover, Brown attempted to ensure that African Americans did not
receive an inferior education. Under the Fordice standard, however, a poten-
tially paradoxical situation arises. The Fordice standard suggests that public
HBCUs should be eliminated.103 Yet, eliminating these institutions would di-
minish the very choice that Brown provided.
101. See Fordice, 505 U.S. at 734. The policies and practices of Mississippi’s system did not dis-
criminate against Anglo-Americans because they were free to attend any of the eight Mississippi univer-
sities. See id; see also supra Part III.D.
102. See Fordice, 505 U.S. at 729.
103. See Ware, supra note 4, at 672.
560 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
Third, the power structure within America’s capitalistic setting continues to
be dominated by Anglo-Americans. The only way that African Americans and
other minorities can overcome this hurdle is if they enjoy equal opportunity to
obtain the requisite knowledge from a postsecondary institution. Unfortunately,
due to decades of past discrimination against African Americans, many blacks
still require the nurturing environment and social benefits that public HBCUs
provide. 104 Moreover, statistics show that eliminating these institutions will
greatly decrease the pool of available educated African Americans that is neces-
sary to replenish and diversify today’s professional workforce.105 Thus, elim i-
nating these institutions would further perpetuate the discriminatory segregation
of America’s workforce.
In accordance with Justice Thomas’ concurrence,106 the continued success
of public HBCU graduates demands that these institutions flourish.107 Moreo-
ver, the DOE recognizes the importance of maintaining these institutions.
VI. CIRCUMVENTING THE NEGATIVE INTERPRETATIONS
For the reasons stated above, the Bazemore standard should supplant the
Fordice standard with regards to public HBCUs. However, since Fordice failed
to directly address these institutions, lower courts have the power to interpret
Fordice in a manner that may negatively impact HBCU status by forcing them
to either merge with existing majority institutions, or close.108 Accordingly,
public HBCUs should protect themselves by circumventing possible negative
State university systems with public HBCUs can protect themselves against
the effects of negative interpretations of Fordice in one of two ways. They can
either require their public HBCUs to implement a diversification policy and ac-
tively increase recruitment efforts to attract non-African American students, or
they can restructure their university system into a tier system and rank the mis-
sions of their universities so that their universities do not perpetuate a dual sys-
tem. Both methods would circumvent any possible negative effects of Fordice,
however, both alternatives have advantages and disadvantages. For the reasons
stated below, the former protective measure would be more beneficial than the
latter. Currently, both methods have been explored and are being implemented
in various states.109
104. Private HBCUs also provide the same nurturing environment and social benefits; however,
since the schools are private, tuition is often considerably more expensive, which diminishes the oppor-
tunity for many blacks to attend.
105. See S. HILL , NATIONAL CENTER FOR EDUCATION STATISTICS, THE TRADITIONALLY BLACK
I NSTITUTIONS OF HIGHER EDUCATION 1860 TO 1982, xiv-xv (1985).
106. See Fordice, 505 U.S. at 748 (Thomas, J., concurring).
107. Between 1954 and 1982, enrollment at HBCUs increased from 70,000 students to 200,000 st u-
dents and the number of degrees awarded at these institutions increased from 13,000 to 32,000. See HILL,
supra note 105, at xiv-xv.
108. See Fordice, 505 U.S. at 752 (Scalia, J., dissenting).
109. Tennessee uses a court-mandated diversification policy at the public HBCU, Tennessee State
University (TSU), and Florida has a university system that categorizes its public HBCU, Florida Agri-
cultural and Mechanical University (FAMU), in a separate tier than Florida State University (FSU), a
public majority institution located in the same city. See Chaka M. Patterson, Desegregation as a Two-
Way Street: The Aftermath of United States v. Fordice, 42 CLEV. ST. L. REV. 377, 431 (1994). In 1979,
2000] FORDICE—A HIGHER EDUCATION DILEMMA 561
One way HBCUs can circumvent negative interpretations of Fordice and
ensure their viability is to diversify110 and actively increase enrollment of non-
African American students.111 According to Justice Scalia and Judge Motley,
Fordice requires public HBCUs to be “educationally justifiable,” a standard that
these institutions arguably cannot meet because they infringe upon the integra-
tion philosophy underlying Brown and its progeny.112 Therefore, to comply with
Fordice, Justice Scalia and Judge Motley argue that public HBCUs should be
merged with majority institutions or closed.113
Public HBCUs, however, can continue to exist as such and still meet the
“educationally justifiable” standard set forth in Fordice. The key is moderate
diversification—actively increasing non-African-American student enrollment
while maintaining a significant percentage of African-American students.114
Using moderate diversification policies, public HBCUs could continue to play a
significant role in educating African Americans, satisfy the Fordice standard by
discontinuing policies perpetuating racial identifiability, and satisfy the integra-
tion philosophy underlying Brown. For example, one HBCU that has such a
policy is Tennessee State University (TSU). TSU has implemented a diversifi-
cation policy to actively attract non-African American students and faculty.115
With this diversification policy, TSU currently has a student body and faculty
composition comprised of a significant percentage of Anglo-Americans.116 Al-
though TSU actively recruits non-African American students, it is still consid-
ered an HBCU and continues to educate a significant number of African Ameri-
In support of the diversification argument, proponents claim several advan-
tages to diversifying public HBCUs. First, some argue that increasing the num-
ber of white students at public HBCUs will diminish negative criticism of these
institutions because white students will experience the beneficial aspects of
public HBCUs.117 Others argue that white students at predominately black col-
TSU was ordered to merge with the Nashville campus of the University of Tennessee in an effort to in-
crease racial diversity at TSU. See Grier v. University of Tennessee, 597 F.2d 1056, 1064 (6th Cir.
1979). Currently, TSU has a significant population of Anglo-American students and faculty. See Patter-
son, supra .
110. According to Patrick Hill, a leading author on the subject of diversity in educational settings, a
diverse university is one where “a spirit of civility and mutual respect abounds, when all groups feel
equally well-placed and secure within the community because all participate in that spirit.” SIMS, supra
note 2, at 2 (quoting Hill).
111. Proponents of educational diversification believe that the success of HBCUs is dependent upon
these universities’ strong commitment to diversify. See id. at 12.
112. See JUDGE MOTLEY, supra note 82, at 238-39; see also Fordice, 505 U.S. at 753-54 (Scalia, J.,
113. See id.
114. Charles V. Willie, author of Black Colleges Should Recruit More White Students, suggests that
the foundations that supported increased enrollment of African Americans at predominately white
schools during the 1960s should be the same foundations that support the increased enrollment of Anglo-
Americans at predominately black schools today. Charles V. Willie, Black Colleges Should Recruit More
White Students, THE CHRON . HIGHER EDUC., March 13, 1991, at A48.
115. See Patterson, supra note 109, at 431 and accompanying text.
116. See id.
117. See SIMS, supra note 2, at 27.
562 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
leges, especially white males, develop stronger, positive self-concepts because
they are forced to learn the value of “earning the approval of others.”118 Finally,
proponents have argued that diversity at these institutions may increase interra-
cial harmony between white and black students.119
Conversely, those in favor of maintaining an African-American majority at
public HBCUs propose that diversification at HBCUs has disadvantages as
well. For example, some argue that a predominately black student body allows
African-American students the opportunity to discover and understand certain
race-specific social and political issues.120 Furthermore, HBCUs may be consid-
ered less important to white students because white students do not necessarily
share the same social and political concerns as black students. Black students,
therefore, may be better served if they are allowed to attend predominately
black institutions.121 Another argument against diversifying public HBCUs is
that in doing so, African-American culture may be lost.122 According to this ar-
gument, HBCUs traditionally guard African-American culture and history and
would, therefore, “be handicapped in continuing this tradition if white minori-
ties are allowed to alter their cultural heritage in any way.”123
Moderate diversification of public HBCUs would not prevent black students
at these institutions from understanding and addressing their particular social
and political issues, nor would it disturb the cultural history of these institu-
tions. Moreover, because of the possible detrimental effects that a negative in-
terpretation of Fordice could have on public HBCUs, and because HBCUs can
be diverse and continue to maintain and promote African-American history and
tradition, the benefits of diversification outweigh the disadvantages.
B. The Tier System
Another way public HBCUs can circumvent disfavorable interpretations of
Fordice is for the state in which the HBCU is located to restructure its univer-
sity system in a manner that eliminates the dual system. Public HBCUs exist
because of the prior de jure segregated system enunciated in Plessy v.
Ferguson. 124 Due to Plessy’s “separate but equal” standard, most public HBCUs
are structured in a manner similar to Mississippi’s in Fordice. For example,
most public HBCUs are located in close proximity to and have duplicate, or
“dual,” education programs as offered by a nearby, majority institution. There-
fore, as Justice Scalia argued, it is nearly impossible for public HBCUs to a d-
118. Id. A 1978 study of white students at public HBCUs revealed that, “[a]fter being a minority on
black campuses, whites saw themselves differently. They began to understand how others perceived
them and their way of life.” Id.
119. See id. The 1978 study also showed that whites attending public HBCUs are less likely to be
racially prejudiced against blacks and that these students are more aware of current race relations. See id.
at 27-28. “Additionally, 75[%] to 80[%] of [white students attending HBCUs] said that their education
had heightened their appreciation of different ways of life and caused them to be more concerned about
equal opportunity for all . . . .” Id. at 28.
120. See id. at 29.
121. See id.
122. See id.
123. Id. at 30.
124. 163 U.S. 537, 551 (1896).
2000] FORDICE—A HIGHER EDUCATION DILEMMA 563
here to Fordice’s “unnecessary duplication” standard125 and establish that they
do not have a dual, segregated system because that is precisely why these
HBCUs were originally founded.126
There is, however, one way that states operating public HBCUs can elude
Fordice’s “unnecessary duplication” standard. States can restructure their uni-
versity system so that public HBCUs do not have the same mission or educ a-
tional programs as majority institutions located nearby. Florida, for example,
has such a system. Prior to Fordice, FAMU, an HBCU and FSU, a majority in-
stitution, located in the same city, arguably had unnecessary, duplicate missions
and educational programs. The primary difference was that one institution had a
predominately white student body and the other a predominately black student
body. After Fordice, however, the Florida Board of Regents restructured Flor-
ida’s university system so that FAMU now offers different educational pro-
grams and has a different mission than FSU. 127
Although, implementing a tier system similar to that in Florida may circum-
vent disfavorable interpretations of Fordice, HBCUs may still face potential
problems using this option. First, if states adopt a tier/mission classification re-
gime they run the risk of violating Fordice’s “mission standard.”128 States may,
however, avoid this problem if they can show that their particular classification
regime does not perpetuate segregation.129 Second, public HBCUs operating
within a tier/mission classification framework will never have the opportunity
to compete with their predominately white counterpart because the public
HBCU and the majority institution will, by virtue of the tier system itself, never
be similarly classified. In Florida, for example, FAMU will always be in a
lower tier than FSU; if it were to ever move into the same tier the problem of
violating Fordice’s “unnecessary duplication” standard would necessarily resur-
face. Therefore, since restructuring public HBCUs using a classification regime
imposes detrimental disadvantages to these institutions, moderate diversific a-
tion is the better option and, further, avoids possible ramifications of violating
Fordice under disfavorable interpretations of the Fordice standard.
In deciding Brown and its progeny, the Court sought to prohibit states from
discriminating against African Americans and to ensure that students could at-
tend the school(s) of their choice; many African Americans have chosen to at-
tend public HBCUs. Now, however, some twenty-eight years later, the Supreme
Court, in Fordice, has attacked the viability of public HBCUs and, arguably,
125. See supra text accompanying note 63.
126. See United States v. Fordice, 505 U.S. 717, 749 (Scalia, J., dissenting in part, concurring in
127. FAMU is now a “Comprehensive” university while FSU is now a “Research” university. See
FLORIDA BOARD OF REGENTS, 1998-2003 STRATEGIC P LAN 2 (Nov. 1998). Also, it is only alleged that
the Board of Regents structured the two universities this way in an effort to prevent negative interpret a-
tions of Fordice.
128. See supra text accompanying note 64.
129. The Fordice majority did not say that mission classifications were, themselves, unconstit u-
tional; the problem with Mississippi’s classification regime in Fordice was that it was found to perpet u-
ate discriminatory segregation. See Fordice, 505 U.S. at 740-741.
564 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:547
has left room for implementing a standard that would ultimately eliminate the
very choice Brown and its progeny provided—the choice for African Americans
to attend public HBCUs. This decision seems to directly contradict the Court’s
intentions, as set forth in 1954.130 Brown was intended to ensure that blacks
were afforded the opportunity to attend the school of their choice. Should it
matter if their choice happens to be a predominantly black institution?
In contrast to Fordice, the better standard to determine the viability of public
HBCUs is the Bazemore “freedom of choice” standard. Nevertheless, in the
wake of the Fordice decision, public HBCUs must take preventive measures to
ensure their existence. The best way to accomplish this is through diversific a-
The continued existence of HBCU[s] does not constitute a threat to racial
equality because these colleges and universities are open to members of all
racial and ethnic groups. Just as with other specialized institutions, such as
religious colleges and women’s colleges, HBCU[s] provide a choice for
those seeking educational environments that are consistent with their per-
sonal values and experiences. So long as these institutions are open to all ap-
plicants, they enhance equality and expand opportunities for blacks without
restricting the options of others.131
130. See Brown v. Board of Education, 347 U.S. 483, 495 (1954).
131. See SIMS, supra note 2, at 12.